CLA-2 CO:R:C:G 086175 NLP
Lisa Schuh-Kahn, President
LSK Associates, Inc.
22 Hattie Court
Middletown, NJ 07748
RE: Ivory carvings
Dear Ms. Schuh-Kahn:
This is in response to your letter of December 1, 1989,
requesting a tariff classification of ivory fossil carvings,
under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA). Descriptive literature was submitted for our
examination.
FACTS:
The merchandise at issue is fossil ivory carvings produced
by the Tobolsk artisans of Tobolsk, Siberia, Russia.
ISSUE:
What is the HTSUSA tariff classification of the Tobolsk
ivory carvings?
LAW AND ANALYSIS:
In your papers you suggest that the ivory carvings are
ethnographic in origin and are, therefore, classifiable under
subheading 9705.00.0090, HTSUSA, which provides for collections
and collectors' pieces of...ethnographic interest, other. In
furtherance of your belief, you have submitted definitions of
ethnography as well as other information on these Russian
carvings.
Subheading 9705, HTSUS, does not provide a definition for
ethnographic objects. Tariff terms are considered in accordance
with their common and commercial meaning, which are presumed to
be the same. Nippon Kogaku (USA) Inc. v. United States, 673 F.2d
380 (1982). To ascertain the common [and commercial] meaning [of
a tariff term], in addition to relying upon its own understanding
of the terms used, the courts may consult dictionaries, lexicons,
the testimony of record, and other reliable sources of
information as an aid to its knowledge. Pistorini & Co., Inc. v.
United States, 461 F. Supp. 331, 332 (1978). In the instant
case, in order to understand the meaning of the word
ethnographic as used in the HTSUSA, we have looked to dictionary
definitions of the term, the Explanatory Notes of the HTSUS, your
submissions and the previous Tariff law of the United States, the
Tariff Schedules of the United States (TSUS).
A representative definition of the term ethnography defines
it as the branch of anthropology that deals descriptively with
specific cultures, especially those of primitive people or
groups. Webster's New World Dictionary, Third College Edition
(1988). The Explanatory Notes to the Harmonized System provide
the official interpretation of the HTSUSA at the international
level. The Explanatory Notes to subheading 9705, HTSUS, state
that collections and collector's pieces of ethnographic interest
include:
* * *
(2) Articles having a bearing on the study of
activities, manners, customs and characteristics
of contemporary primitive people, for example,
tools, weapons or objects of worship.
Based on the information provided, it appears that the ivory
carvings do depict activities of a certain culture, however, we
do not find that these ivory carvings are necessarily
characteristic of a primitive people or culture. Webster's New
World Dictionary, Third College Edition (1988), defines primitive
as of or existing in the beginning or the earliest times or ages
Webster's New World Dictionary, Third College Edition, (1988),
defines contemporary as living or happening in the same period or
time period. The information provided does not describe whether
the people being depicted in the carvings reflect a culture
existing in the beginning of time that still exists today.
For example, though the map submitted describes ethno-
linguistic groups, we are unsure which area and group relate to
the culture that the Tobolsk artisans depict in their carvings.
There is also no indication as to whether the groups of people
depicted are primitive groups or indigenous to the Siberian area.
Moreover, though the article "Siberia's Empire Road, the River
Ob" mentions the artisans of Tobolsk, there is little
information about the culture they depict in their carvings.
National Geographic, vol. 149, No. 2, February 1976, 176. In
addition, even if the Eskimo artifacts discovered by Edward
Nelson are ethnographic objects, the instant carvings were not
created by Eskimos, were not found 100 year ago and may not be
from the same area as the Eskimo carvings. "People's of the
Arctic", National Geographic, Vol. 163, No.2, February 1983,
144. While the Berizoka pamphlet does provide more information,
it deals with bone, not ivory, carvings. In addition, the fact
that early Russian settlers initiated the fossil carvings does
not necessarily mean that the carvings depict a primitive
culture.
Finally, the previous tariff laws, the TSUS, though not
binding on the present tariff laws, provides guidance for present
classification of merchandise absent an explicit change in the
new laws over the previous. Item 766.20, TSUS, provided duty
free treatment for ethnographic objects made in traditional
aboriginal styles and made at least 50 years prior to their date
of entry. In accordance with this definition, the instant ivory
carvings would not be considered ethnographic for they do not
appear to be made by the earliest known inhabitants of the region
and they were not made 50 years before entry.
HOLDING:
The ivory carvings are not ethnographic in nature. They
are classifiable 9601.10.0000, HTSUSA, which provides for worked
ivory and articles of ivory. The rate of duty is 35 percent ad
valorem since they are a product of Russia.
Sincerely,
John Durant, Director
Commercial Rulings Division